Criminal Law and the Charter

Criminal Law and the Charter

Charter Overview

Charter Challenges under s. 52

Limits on Charter rights

Oakes Test

Principles of fundamental Justice

General Principles

Principles of Fundamental Justice

Doctrine of vagueness

Overbreadth

“Reasonable”

EVIDENCE AND PROOF

R v Oakes SCC 1986: confirms that the presumption of innocence is a hallowed principle, embodied by s.11(d) of the Charter

R v Lifchus SCC 1997

R v Starr SCC 2000

Prosecution

Actus Reus (prohibited conduct)

(A) VOLUNTARY (Physical Voluntariness) [RBHS 310-316]

(B) ACT or OMISSION OF A LEGAL DUTY or both [or STATUS OFF.]

(C) CAUSES PRESCRIBED HARM or OCCURS IN PROHIBITED CIRCUMSTANCES or both [RBHS 333-337] (pg 13)

CONCURRENCE / CONTEMPORANEITY OF ACTUS REUS & MENS REA

Causation

Factual Causation:

Legal Causation:

ALL CRIMES except first degree murder (Nette):

FIRST DEGREE MURDER (only for s. 231(5))

Thin skull:

Intervening cause:

Remoteness:

Mens Rea (State of Mind/Moral blameworthiness)

Rule of Symmetry (Creighton)

(1) FULL MENS REA – SUBJECTIVE

(A) INTENT

(B) RECKLESSNESS

(D) WILFUL BLINDNESS (subjective test)

(2) CRIMINAL NEGLIGENCE

(3) PENAL NEGLIGENCE

(4) STRICT LIABILITY (created by SSM)

(5) ABSOLUTE LIABILITY

FINDING THE MENS REA [see Charts on pp. ____]

CHART: FINDING MENS REA

MENS REA CHARTER CONSIDERATIONS

Defences

Defences and “Air of Reality” Test

Excuse vs. Justification:

CHART: Defences

Mistake of Fact

Mistake/Ignorance of LAw

General Rule

Rationale (Jorgensen)

Exceptions/ Limitations to the Rule:

Intoxication (voluntary)

MENTAL DISORDER

Unfit to Stand Trial

NCRMD - Procedural

NCRMD – Substantive

Automatism

CHART: Involuntary Conduct

Provocation

RATIONALE:

THREE ELEMENTS (s.232(2)):

BURDEN:

Self-defence PRE-mar. 11, 2013

The Provisions – ss. 34-37 (Now abolished)

Domestic Violence & Self Defence

CHART: Self-Defence (Old)

self-defence post-mar. 11, 2013

3 REQUIREMENTS

New Self Defence Provision

DURESS

ONUS:

DISTINGUISHING “SECONDAY” & “PRINCIPAL” OFFENDERS

CURRENT LAW (Ryan):

DURESS & BATTERED WOMEN

Criminal Law and the Charter

Charter Overview

Section / Provision
Charter limit
1 / guarantees rights and freedoms that can be infringed on if necessary to "reasonable limits"
Rights and Freedoms
2 / defines fundamental freedoms (Criminal law will interfere or infringe on some of these, justified by s. 1)
7 / Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8 / Everyone has the right to be secure against unreasonable search or seizure.
9 / Everyone has the right not to be arbitrarily detained or imprisoned.
10 / Everyone has the right on arrest or detention:
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11 / Proceedings in criminal and penal matters
(d) Presumption of innocence
(e) Not to be denied reasonable bail
12 / Protection from cruel and unusual punishment
15 / equality rights
Charter Remedies
24(1) / Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
24(2) / Exclusion of evidence: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Application of the Charter
32 / The Charter applies to Parliament and the government of Canada and to Provincial Legislatures and provincial governments

Charter Challenges under s. 52

1)Federal or Provincial legislation which violates provisions in the Canadian Charter of Rights and Freedoms will be declared "of no force and effect" under s. 52 of the Constitution Act, 1982, which states:
a)s. 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect

Limits on Charter rights

Charter S. 1: “such reasonable limits prescribed by law”
Oakes

Oakes Test

/ 1)In order for a law or legally sanctioned action that violates the Charter to be saved under s. 1, it must have:
a)A pressing and substantial objective “of sufficient importance to warrant overriding a constitutionally protected right or freedom.”
b)Proportionality between the deleterious effects of impugned measures and the objectives sought. Proportionality is determined by examining:
i)Rational connection between means and objective
ii)Minimal impairment of the infringed rights or freedoms.
iii)Does the good achieved outweigh the bad of the breached right?
2)ALL elements must be met to justify a violation of a Charter right.

Principles of fundamental Justice

Charter S. 7: “life, liberty and security of the person... except in accordance with the principles of fundamental justice”
Malmo-Levine, Nova Soctia Pharmaceutical, Heywood, Paré, Labeye, Rodriguez, Keegtra, Canadian Foundation

General Principles

/ 1)If there is another, more specific Charter violation, address it through the tools available in that section. Use s. 7 only for broad principles.
2)What principle has been violated? Is it or is it not a principle of fundamental justice?
a)Confirmed PFJs: vagueness, overbreadth, presumption ofinnocence, right tosilence, right to counsel, self-incrimination, etc.
i)Void for vagueness: stems from rule of law principle. Test is a fairly high standard.
(1)Canadian Foundation: the law needs only to be as specific as necessary to make an area of risk around the offence known.
ii)Overbreadth: the law must only be as broad as is necessary to achieve its goals. Laws should not be overly broad temporally, geographically, or in terms of the peoples affected. (Heywood)
b)Malmo-Levine, Labeye: Harm principle is NOT a PFJ.
c)Presumption of innocence until proven guilty is codified under s. 11(d) of Charter.

Principles of Fundamental Justice

/ PFJ Criteria: What is a principle of fundamental justice? (Malmo-Levine, pg 62)
1)The rule must be a legal principle
2)For which there is significant societal consensus that it is fundamental to how our legal system ought to operate
3)And be identified with sufficient precision to yield a manageable standard

Doctrine of vagueness

/ Void for vagueness doctrine: an overly vague law is unconstitutional
1)This is founded on the following principles (informed by Charter ss. 1 and 7): (Nova Scotia Pharmaceutical)
i)Fair notice: Citizens should readily be able to determine which acts are prohibited upon reading an enactment (Rule of Law)
ii)Limitation of law enforcement discretion: If prosecution ensures conviction, the discretionary powers of law enforcement (police & counsel) are unconstitutionally broad. “Standardless sweeps” are impermissible!
iii)Adequate Basis for Legal Debate: reasoned analysis applied to legal criteria
2)But does not invalidate a “vague” law when the subject matter resists legal precision

Overbreadth

/ Void for overbroadness: If the State uses means which are broader than necessary (e.g. a narrower law could achieve the same objective) to achieve a legitimate objective, the PFJ (and thus s. 7) are violated. (Heywood)
1)TEST: If a law restricts liberty “more than necessary” to achieve Parliament’s legitimate goal, then that law is “overbroad”, and therefore it violates PFJs of s. 7
2)e.g. making it an offence for a person with sexual violence convictions to be “found loitering in or near a… playground” is overbroad for 4 reasons:
i)Space: Too geographically broad (which places are “near”?)
ii)Time: Too temporally broad (e.g. applying for life without review)
iii)People: Includes too many people (what if they aren’t pedophiles)?
iv)Warning: May be enforced without notice
v) no cause and effect under s. 52

“Reasonable”

/ “Reasonable” is a magic word – it lets courts limit otherwise overbroad legislation (Canadian Foundation - CFCYL)
1)“Reasonable” force is trifling, corrective, transitory and only used on children ages 2-12
a)The dissent does not approve of this; amounts to a reading down.
2)Literal meaning is not always authoritative; only contextual meaning is. Invoking Parliament’s intent can allow for avoidance of ambiguity in the text. (Paré)
i)“While committing” is a continuous sequence of events defined by control of victim (escaping does not constitute a loss of control if re-controlled)
3)Courts should take an objective, prospective, long-term, societal approach

EVIDENCE AND PROOF

Two Principles (golden threads) -Woolmington

Presumption of Innocence
Exceptions:
Reverse onus justified by the Oakes test
Certain defenses: Mental disorder (s. 16)
Evidentiary burden (for a defense to go to jury)
Proof beyond a reasonable doubt

s.11(d) of the Charter:Section 11(d): Any person charged with an offence has the right… (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. (Oakes)

R v Oakes SCC 1986: confirms that the presumption of innocence is a hallowed principle, embodied by s.11(d) of the Charter

Facts/Issues / Charged with unlawful possession of a narcotic for the purpose of trafficking: presumed to be in possession for the purpose of trafficking.
 Argued that s.8 of the Narcotics Control Act violates the presumption of innocence in s.11(d), because it could be possible for a conviction to occur despite the existence of a reasonable doubt (needs a balance of probabilities to prove innocence).
Held / The act contains a reverse onus, a violation of 11(d) and it is not a reasonable limit
Notes / PURPOSE OF PRESUMPTION OF INNOCENCE: protects life liberty and security. Reflects faith in humankind. The consequences of conviction are very serious; therefore need to avoid wronLAWRENCEul convictions which the presumption of innocence helps. The presumption of innocence is “essential in a society committed to fairness and social justice”. The presumption can be rebutted if the crown proves the accused’s guilt beyond a reasonable doubt.
What must the crown prove beyond a reasonable doubt?

Elements of the offence (mens rea and actus reus)
The absence of a defence

**Note that a reverse onus is upheld as constitutional in Chalk

R v Lifchus SCC 1997

Facts/Issues / Trial judge told jury to use the phrase “reasonable doubt” in its ordinary, everyday sense; error?
Held / The instructions were an error- it has a special meaning and is intertwined with the presumption of innocence.
 A trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for a jury to convict.
Notes / There are three standards of proof:

beyond a reasonable doubt (highest)– because of the presumption of innocence
balance of probabilities (50% +) - more likely than not – used in reverse onuses
some evidence/air of reality – filter for the jury

R v Starr SCC 2000

Facts/Issues / Trial judge instructed the jury that “reasonable doubt” had no special connotation and it did not require proof of an absolute certainty. He failed to explain the special legal significance (requires a significantly higher quantum of proof than the balance of probabilities)
Held / The trial judge erred by not complying with the Lifchus standard. The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities.
Notes / Dissent: Lifchus provides guidelines rather than prescriptions, the charge when read as a whole makes it clear- the statement was a harmless error. Says that jurors are sophisticated persons (??)

Prosecution

CRIMINAL LIABILITY = [AR + MR] – ANY LAWFUL DEFENCE(S)
“The act is not criminal unless the mind is also criminal” (Lord Coke, 1641)

Actus Reus (prohibited conduct)

1)The prohibited conduct (AR) for all offences is set out in the CC or other statute creating the offence and cannot be:
a)impermissibly vague/overbroad (s. 7 Charter) (see first term, p. 10)
b)retroactive (s. 11(g) Charter)
/ Remember no common law offences (CC s.9)
2)AR can be broken down into the following ELEMENTS:
a)VOLUNTARY (physical voluntariness) (pg 9)
b)ACT or OMISSION OF A LEGAL DUTY or both[1] [or STATUS] that (pg 10)
c)CAUSES PRESCRIBED HARM[2] or OCCURS IN PROHIBITED CIRCUMSTANCES[3] or both[4] (pg 12)

or

(A) VOLUNTARY (Physical Voluntariness) [RBHS 310-316]

Acts must be voluntary (this is a principle of fundamental justice - s. 7 - but not in the CC)
Even in cases of strict liability where no MR required (Kilbride (NZ))
Unfair and unjust to condemn/punish ppl for conduct they didn’t choose or can’t physically control
To be voluntary, must be able to REASON and CHOOSE (willed physical act/omission) (Bratty)
Physical involuntariness can be
Conscious: spasm, twitch, trip & fall, unexpected mechanical vehicle failure, physical impossibility to fulfill legal duty (see: issue in Larsonneur[5]); physical compulsion; reflex action (although fine line btw what is reflexive and what is not)
Unconscious: involuntary intoxication (King 314), concussion (Bleta), sleepwalking (Parks), delirium, seizure; some severe forms of mental disorder [see insanity defence, p. __), intoxication [see intoxication defence, p. __]
NOT moral involuntariness (Ruzic – defence of duress/ compulsion)
Has nothing to do with AR, separate defence issues – you chose to do something but only b/c of an outside threat
Despite overlap, voluntariness should be considered part of actus reus, not mens rea (Ruzic) because of absolute liability cases where mens rea not required (e.g. Kilbride NZ case[6])

/ Ruzic citing: Rabey (1980), Parks (1992), Daviault (1994), Stone (2000)
Bratty (1963)- the accused alleged that he killed the victim while unconscious during an episode of psychomotor epilepsy]
Ruzic – duress to import heroine

(B) ACT or OMISSION OF A LEGAL DUTY or both [or STATUS OFF.]

ACT[RBHS 316]
Always described in Code or statute
To define, look at definitions, case law, statute (stat interpretation issue)
Important to figure out exact meaning of the prohibited act (e.g. “obscene material”)
Check CC index; check s. 2 definitions, definitions of the Part, case law, legal dictionary
One Continuous Act Theory:
An unintentional act followed by an intentional omission to rectify that act or its consequences can be regarded in toto (‘altogether’) as an intentional act when reality and common sense so require (Miller)
OMISSION OF A LEGAL DUTY[failure to act where the law imposes a legal duty to act]
No general legal duty to be a good Samaritan
Common law recognized 3 broad categories of legal duties which were codified in 1892 when CC enacted (see table below)
Specific Omission Offences: ss. 50(b), 80 (& s. 79), 127, 129(b), 252(1), 254(5) (See pg 4 CASES)
General Omission Offences
180(2)(a): Common Nuisance: unlawful act or failure to discharge a legal duty which endangers lives, safety, health, property or comfort of the public …
220/221: Crim. Neg. Causing Death/Bodily Harm
Criminal negligence defined in s. 219 as doing anything or omitting to discharge a duty imposed by law that shows wanton or reckless disregard for the lives and safety of others
QUESTION: What is considered a duty imposed by law in s. 219?
CoAs: statutes, CL (Thornton = breach of CL tort duty)
SCC: statutes, no ruling on CL yet
ISSUE: does this violate s. 9 of the CC by allowing for the creation of common law offences[7]?

/ Miller – mattress fire
Thornton ONCA – non-disclosure of HIV in donating blood = failure to discharge legal duty. Authority that duties can be CL duties (ct relied on Donaghue neighbour CL rule); SCCrelied on s. 216
Cuerrier SCC 1998 – Ct createdduty to disclose HIV statues before having unprotected sex; Ct didn’t say where this duty came from; could argue CL re dangerous acts OR s. 216 (Remember: no duty to disclose where a condom is used and A has low viral count – Mabior)
Browne ONCA – girl swallows cocaine; takes to hospital in taxi
COMMON LAW / CC (1982) / CASE LAW
1. Relationships of dependency (Popin, Nixon)
(e.g parent/child; dr. or nurse/patient; jailor/inmate) / s 215(1): duty to provide necessaries of life in relationships of dependency (Popen)
(a): parent for child < 16: duty to provide necessaries of life
(b): spouse / CL-partner to each other
(c): to a person under your charge if that person is unable to withdraw from your charge, or to provide necessities for themselves (Nixon)
s 218: Abandoning or exposing a child under 10 so that its life is or is likely to be endangered is an offence
(Note: this requires proof of subjective mens rea (R v H(AD))) / Popen: OCA: parent has a CL duty to take rsbl steps to protect child from illegal violence [of spouse] (relied on CL NOT 215 in this case)
Nixon: 1990 BCCA: police officer has a duty to provide care and protection to inmates arising from CL and statute (Police Act)
2. Undertaking to do something / s. 217 legal duty to DO an act one has undertaken to do, if an omission to do the act is (or may be) dangerous to life. When one seriously commits oneself to undertaking which clearly expresses intent to be legally bound, and usually but not necessarily involved being relied upon (flows from the actions of A and not from the relationship between the parties)Defined in Browne (1997) / Browne ONCA1997: A’s crim neg causing death conviction overturned on basis that he made no undertaking to render assistance w/in meaning of 217 = no legal duty owed; deceased swallowed drugs and died; CT says no legal to arises btw friends/bf-LAWRENCE; need an undertaking under s. 217 for a legal duty to arise; undertakings have to be clearly made with binding intent (i.e binding commitments); “Ill take you to the hospital” was not an undertaking creating a legal duty. [8]
3. Duty to use reasonable care in dealing with dangerous objects OR when performing dangerous tasks (Coyne, Cuerrier?) / s. 216: legal duty to have and to use reasonable knowledge, skill and care in:undertaking any act that may endanger the life of another person (except in cases of necessity), undertaking to administer surgical or medical treatment to another person (except in cases of necessity)
(SCC Thornton, Cuerrier?Miller in Canada?) / Coyne: NBCA: in regard to the offence of criminal negligence causing death; rifle (relied on CL NOT 216)
Thornton: 1991, ONCA: failure to disclose HIV+ when donating blood. SCC relied on s.216; CA relied on CL tort duty in criminal neg. (s219)
-- / 2003 CC Amendment – Duty of Person Directing Work
s. 217.1: Duty of those directing work to take reasonable steps to prevent bodily harm to that person or any other person arising from the work/task / --

STATUS OFFENSES[RBHS 331-332]
Very few, if any, pure status offences in Canada – would almost certainly offend Charter s. 7 (esp. where status is an involuntary one)
Parliament recently rejected criminalizing being a member of a criminal/terrorist org and opted instead for participating in the activities of these orgs
Criminalizes a state of being, rather than a positive act or omission
Examples of what some describe as “status offences – but all involve some conduct:
Keeping a bawdy-house
Being found in a bawdy-house
Being nude in a public place
Can be an element of an offence (vagrancy s. 179(1)(a) “no lawful profession or calling”; being a cop in abuse of power offence)

(C) CAUSES PRESCRIBED HARM or OCCURS IN PROHIBITED CIRCUMSTANCESor both [RBHS 333-337] (pg 13)

Some offences require conduct to have caused certain prescribed harms (e.g. murder – “causing death”); others require conduct to occur in certain prescribed circumstances (e.g. DWI – “while impaired”) with no required harm. Some have both (e.g. impaired driving causing bodily harm/death)